Matthew R. Drake v. Agency for International Development, Agency.

The Merit Systems Protection Board (“MSPB”) has ordered the U.S. Agency for International Development to pay backpay, including interest, and other benefits to Matthew Drake, a former investigator who alleged that he was retaliated against for blowing the whistle about agency personnel consuming alcohol while on duty. The MSPB also ordered the Agency to cancel the former investigator’s reassignment and restore him to his former position as Inspector in Budapest, Hungary. The order below follows a 2008 decision where the U.S. Court of Appeals for the Federal Circuit previously held that the MSPB erred in concluding that Mr. Drake’s disclosures were not protected under the Whistleblower Protection Act (“WPA”), because he could not prove that the behavior he observed was a result of intoxication.

According to the Federal Circuit, the appropriate standard for determining whether an employee’s disclosure is protected under the WPA is “not whether [the employee] was able to prove [a violation], but rather could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by [the employee] reasonably conclude that agency personnel were [engaged in] a violation.” In applying this standard, the court concluded that Drake had a reasonable belief that agency personnel were intoxicated and thus, Drake engaged in protected conduct under the WPA.

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2009 MSPB 81

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Docket No. DC-1221-06-0128-M-1
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Matthew R. Drake,
Appellant,
v.
Agency for International Development,
Agency.

May 13, 2009

R. Scott Oswald, Esquire, Washington, D.C., for the appellant.
Lisa Goldfluss, Esquire, Washington, D.C., for the agency.

BEFORE

Neil A. G. McPhie, Chairman
Mary M. Rose, Vice Chairman

OPINION AND ORDER

¶1
This case is before the Board on remand from the United States Court of Appeals for the Federal Circuit, which reversed our prior decision in the appellant’s individual right of action (IRA) appeal. In accordance with the court’s decision, we ORDER corrective action as set forth below.

¶2
On September 9, 2004, the agency informed the appellant, an Inspector with the agency’s Office of Inspector General, via telephone that he was being reassigned from Budapest, Hungary, to Washington, D.C., effective September 12, 2004. Initial Appeal File (IAF), Tab 10, Subtab 4k.

¶3
The appellant filed a complaint with the Office of Special Counsel (OSC) in which he alleged that he was reassigned because of his whistleblowing activity. IAF, Tab 9, Exhibit 4. After OSC closed its inquiry into the appellant’s complaint, the appellant filed an IRA appeal with the Board, again claiming that he was reassigned in reprisal for his whistleblower activity and requesting a hearing. IAF, Tab 1.

¶4
Without conducting a hearing, the administrative judge dismissed the appeal for lack of jurisdiction. Initial Decision at 1-8. The appellant petitioned for review of the initial decision. Petition for Review File, Tab 1. On review, the Board found that the appellant had established IRA jurisdiction over his appeal and it remanded the appeal to the administrative judge for a hearing and a decision on the merits. Drake v. Agency for International Development, 103 M.S.P.R. 524, ¶¶ 6-14 (2006).

¶5
On remand, after a hearing, the administrative judge denied corrective action. Remand Initial Decision at 1, 9. The administrative judge found that the appellant proved that his disclosure was a contributing factor in his reassignment and that the agency failed to prove by clear and convincing evidence that it would have reassigned the appellant absent his disclosure. Id. at 7-9. However, she found that the appellant failed to prove that he reasonably believed that his disclosure evidenced a violation of law, rule, or regulation and, therefore, she found that the appellant did not show that his disclosure was protected. Id. at 3-7.

¶6
The appellant again petitioned for review. Remand Petition for Review File, Tab 1. The Board denied the appellant’s petition for review by Final Order issued on October 18, 2007. Drake v. Agency for International Development, 107 M.S.P.R. 251 (2007).

¶7
The appellant then sought review before the Federal Circuit. The court found that the administrative judge erred by finding that the appellant failed to show that his disclosure was protected, concluding instead that the appellant made a protected disclosure of information that a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the appellant could reasonably believe evidenced a violation of law, rule, or regulation. Drake v. Agency for International Development, 543 F.3d 1377, 1381-82 (Fed. Cir. 2008). The court noted that the administrative judge had found that the appellant otherwise established that he was entitled to relief when the appellant proved that his disclosure was a contributing factor in his reassignment and that the agency failed to prove by clear and convincing evidence that it would have reassigned the appellant absent his disclosure, id. at 1380, and it remanded the case to the Board “to determine the appropriate corrective action to which [the appellant] is entitled consistent with this opinion,” id. at 1382.

ORDER

¶8
We ORDER the agency to cancel the appellant’s reassignment and restore him to his Inspector position in Budapest, Hungary effective September 12, 2004. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision.

¶9
We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits that may be due under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision.

¶10
We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and to describe the actions it took to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶11
No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182(a).

¶12
For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60-day period set forth above.

¶13
This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)).

NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO
REQUEST ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. § § 1201.201, 1201.202 and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal.

NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO R
EQUEST CONSEQUENTIAL DAMAGES

You may be entitled to be paid by the agency for your consequential damages, including medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages. To be paid, you must meet the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may be found at 5 C.F.R. § § 1201.202, 1201.202 and 1201.204. If you believe you meet these requirements, you must file a motion for consequential damages WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion with the office that issued the initial decision on your appeal.

NOTICE TO THE PARTIES

¶14
A copy of the decision will then be referred to the Special Counsel “to investigate and take appropriate action under [5 U.S.C.] section 1215,” based on the determination that “there is reason to believe that a current employee may have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8). 5 U.S.C. § 1221(f)(3).

NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS
You have the right to request the United States Court of Appeals for the Federal Circuit to review this final decision. You must submit your request to the court at the following address:

United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439

The court must receive your request for review no later than 60 calendar days after your receipt of this order. If you have a representative in this case and your representative receives this order before you do, then you must file with the court no later than 60 calendar days after receipt by your representative. If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to court, you should refer to the federal law that gives you this right. It is found in Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703). You may read this law, as well as review the Board’s regulations and other related material, at our website, http://www.mspb.gov. Additional information is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11.

FOR THE BOARD:
______________________________
William D. Spencer Clerk of the Board Washington, D.C.

DFAS CHECKLIST

INFORMATION REQUIRED BY DFAS IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT CASES OR AS ORDERED BY THE MERIT SYSTEMS PROTECTION BOARD

AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address and POC to send.

2. Statement that employee was counseled concerning Health Benefits and TSP and the election forms if necessary.

3. Statement concerning entitlement to overtime, night differential, shift premium, Sunday Premium, etc, with number of hours and dates for each entitlement.

4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay System), a statement certifying any lump sum payment with number of hours and amount paid and/or any severance pay that was paid with dollar amount.

5. Statement if interest is payable with beginning date of accrual.

6. Corrected Time and Attendance if applicable.

ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:

1. Copy of Settlement Agreement and/or the MSPB Order.

2. Corrected or cancelled SF 50’s.

3. Election forms for Health Benefits and/or TSP if applicable.

4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2’s or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew Retirement Funds.

5. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours.

US DEPARTMENT OF AGRICULTURE
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts.

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision.

2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63) e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected. (if applicable)

Attachments to AD-343

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement. (if applicable)

2. Copies of SF-50’s (Personnel Actions) or list of salary adjustments/changes and amounts.

3. Outside earnings documentation statement from agency.

4. If employee received retirement annuity or unemployment, provide amount and address to return monies.

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours.

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid.

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1-7 above.

The following information must be included on AD-343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)

a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.

If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504-255-4630.